FEDERAL COURT OF AUSTRALIA

CDP16 v Minister for Immigration and Border Protection [2019] FCA 1054

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pays the costs of the first respondent to be agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The appellant is a citizen of Sri Lanka who arrived in Australia as an unlawful maritime arrival on 26 August 2012. The appellant applied for a protection visa which was received by the Minister’s department on 19 August 2013. His claims for protection were set out in a witness statement attached to that application. He applied for a Safe Haven Enterprise Visa (SHEV) on 3 October 2015, which was received on 7 October 2015. On 8 June 2016, the Minister’s delegate refused the application. On 25 July 2016, the Immigration Assessment Authority (the Authority) affirmed that decision. This is an appeal from an order made by the Federal Circuit Court of Australia on 14 December 2018 dismissing an application for judicial review of that decision: see CDP16 v Minister for Immigration & Anor [2018] FCCA 3708.

2    The appellant’s sole ground of appeal alleges jurisdictional error on the basis that the primary judge erred by failing to find the Authority had failed to address and register findings on an integer of the appellant’s claim. The ground alleges as follows:

(1)    that the Authority erred in not considering or making a finding in relation to the appellant’s claim that he is a member of a particular social group, namely, the Temple Group; and

(2)    the Authority erred by failing to examine if there was a relevant social group of which the appellant is a member, and whether the persecution feared upon return to Sri Lanka is for reasons of membership of this group.

3    For the reasons set out below, the ground of appeal has not been established.

Background

4    This is taken from the judgment of the Court below (at [4] to [7]), there being no challenge as to the accuracy of the Court’s recitation. In summary, the appellant claimed protection on the following basis:

The applicant claimed to be of Tamil ethnicity and of the Hindu faith. He claimed that he and his family are supporters of the United National Party. He claimed that, in 2008, his father decided to build a Hindu temple in their local area, which was completed in 2010. His father was allegedly once beaten by two “Sinhala thugs”, Rexy (“R”) and Thushara (“T”), who were supporters of the Public Alliance.

The applicant claimed that, in 2011, R and T stopped him and warned him not to get involved in Hindu activities. In the applicant’s visa application, he stated that he did not take the threats seriously and continued to engage in the youth club activities.

The applicant claimed that, in 2012, he was stopped and threatened by R and his friends who were carrying wooden poles and an iron bar. The applicant claimed that he escaped, and was not able to lodge a complaint at the police station the following day because there were no witnesses. He claimed that he later received phone calls and death threats from either R or T, and that he will be harmed by these “Sinhala thugs” and their supporters if he is returned to Sri Lanka.

The applicant was interviewed on arrival in Australia by an officer of the Minister’s department. He stated that he had left Sri Lanka because he was perceived to be an LTTE supporter, as a result of delivering aid to the tsunami affected north (the Mullaitivu district). No mention was made of the “Sinhala thugs”.

The decision of the Authority

5    The following is taken from the summary provided by the respondent in his written submissions, it being accepted by the appellant as an accurate summary.

6    The Authority accepted that the appellant is a Sri Lankan national of Tamil ethnicity and Hindu faith. It accepted that the appellant is a practising Hindu, and that he and his father faced opposition in relation to building the temple. It accepted as plausible that the appellant's father was beaten on one occasion, and found that a small Hindu temple was completed in the appellant's area by 2010.

7    Hindu religion, temple activities and threats from thugs: After recounting the appellant's evidence given in the SHEV application and at the entry and delegate interviews, the Authority noted that it had significant concerns about the appellant's credibility and reasons he claims to fear harm if returned to Sri Lanka. While accepting that the appellant may have been stopped by two people in 2011 when he and a friend were on their way to or from the temple, it did not accept that he was threatened against involvement in temple activities by two thugs, it did not consider it credible that the appellant would not take such threats seriously and would not mention them in his arrival interview, and did not accept that he feared any harm as a result of the incident. The Authority also doubted that the June 2012 incident (as extracted above at [4]) occurred as the appellant stated in his SHEV application, but instead, accepted his account given at the SHEV interview. That is, that there was an incident in 2012 in which the appellant was slapped, but the Authority did not accept that any threat was made or that he was afraid for his life as a result. As the Authority did not accept that the appellant was threatened, it followed that it did not accept that he and his father went to the police the next day and that the police did not take action, nor that he received death threats on the phone. The Authority also did not accept that Sinhala men came looking for him after he left Sri Lanka.

8    Father's association with United National Party (UNP): The Authority accepted that the appellant's father is a supporter of the UNP, but found that the appellant does not have any particular interest in politics, and is not a supporter of the UNP. Having not accepted that the appellant was threatened in an incident in 2012, it did not accept that his father attempted to use his influence to contact the UNP Member of Parliament.

9    Tamil ethnicity/ Liberation Tigers of Tamil Eelam (LTTE) connections: The Authority accepted that, during the civil war, the appellant's uncle was accused of involvement with the LTTE and that he was beaten and imprisoned before ultimately leaving Sri Lanka. It also accepted that, as a result of the presumed family connection, the appellant's father was questioned by the Criminal Investigations Department (CID) several times about the uncle when the appellant was a small boy, and it accepted as plausible that the questioning occurred during the period the temple was being built. However, given the appellant's youth at the time that his uncle was imprisoned, the long time period since then, and that he has not been questioned by the authorities in relation to the issue, the Authority found that the appellant does not have a profile with the Sri Lankan authorities as an LTTE supporter because of an imputed family connection. The Authority also found that the appellant does not have any profile with the authorities as an imputed LTTE supporter as a result of delivering aid to an LTTE area in 2004. The Authority also noted the appellant's claim to fear harm generally on the basis of his Tamil ethnicity, and found that while he had referred to instances of harassment and discrimination against Tamils by ethnic Sinhalese, he had not provided specific evidence of discrimination on this basis.

10    Illegal Tamil departee with suspected LTTE profile: The Authority accepted that the appellant departed Sri Lanka illegally, and that as a result he would be exposed to action by the authorities under the Immigrants and Emigrants Act (I&E Act). It also accepted that the appellant fears being returned to Sri Lanka and identified both as a failed Tamil asylum seeker and as an illegal departee.

11    Having regard to the above factual findings, the Authority found that:

(1)    there was not a real chance that the appellant would face harm on return to Sri Lanka because of an imputed link to the LTTE as a result of his family connection to his uncle;

(2)    while there was a real chance that the appellant may be subjected to some level of discrimination on return on the basis of his Tamil ethnicity or family connections, it was not satisfied that such discrimination would amount to serious harm;

(3)    the appellant did not face a real chance of harm from R and T because of his involvement in the building of a Hindu temple in his local area, nor from members of a criminal underworld;

(4)    the appellant would not face a real chance of harm on the basis of his Hindu religion;

(5)    there was not a real chance that the appellant would face harm on the basis of his father's support for the UNP; and

(6)    the appellant would not face a real chance of harm for reasons of being a failed asylum seeker from a Western country, including due to his Tamil ethnicity. The Authority found on the evidence, that while it was likely that the appellant would be charged under the I&E Act and fined (or, if he plead not guilty, he would be bailed on a personal surety), the Authority did not consider that this amounted to serious harm. Further, in the unlikely event that the appellant was subject to a custodial sentence, the Authority found that the potential for the appellant to have a brief period of detention did not give rise to a real chance of serious harm on the basis of his illegal departure.

12    The Authority therefore concluded that the appellant did not satisfy the requirements of the definition of refugee in subsection 5H(1), and therefore that he did not meet the criterion for a protection visa as specified under paragraph 36(2)(a) of the Migration Act 1958 (Cth) (the Migration Act).

13    With respect to complementary protection, the Authority was not satisfied that the appellant would face a real risk of significant harm for the purpose of paragraph 36(2)(aa) of the Migration Act, from persons associated with the criminal underworld, as a result of his involvement in building the Hindu temple, as a result of his father's membership of the UNP, on the basis of his religion, on the basis of his Tamil ethnicity or suspected LTTE profile, or due to his treatment as an illegal departee (including as a result of any brief detention, questioning or imposition of a fine on re-entry to Sri Lanka).

Federal Circuit Court

14    By application filed in the Federal Circuit Court the appellant sought judicial review of the Authority’s decision. In that application, the appellant raised two grounds of appeal, namely (1) that the Authority failed to consider an integer of the Appellant’s claim, that he feared harm if he were to return to Sri Lanka because he was a member of a particular social group referred to as the Temple group (the Temple Group Claim), and (2) that the Authority adopted the wrong construction of s 473DD of the Migration Act in relation to considering new information.

15    It is only the first ground which is being pursued in this Court. In relation to that ground of appeal, as the Court below observed, it was necessary to identify the evidence the appellant presented to the Authority in order to consider if it failed to have regard to the Temple Group Claim.

16    The Court below identified the evidence relied on by the appellant to establish the Temple Group Claim. The appellant accepts that summary as accurate.

17    Given the ground of appeal in this Court it is appropriate to recite his Honour’s summary of that evidence (at [21]-[27], references omitted):

One, in an interview conducted on the applicant’s arrival he was asked:

Are you a member of any particular social or religious group?

The applicant answered “yes”. In response to a request for details he stated: “Temple group”.

Two, in a Statutory Declaration which accompanied his visa application, he stated in reply to a question: “Why I left Sri Lanka”:

The Sinhala Buddhists have for many years caused problems for the Hindus all of whom are Tamils as the Buddhists believe the whole of Sri Lanka belongs to them as it is a Buddhist country.

Three, in the same document the applicant submitted he introduced the “issue of the temple”:

With much resistance from the Sinhalese most of whom were Buddhists my father and Babu were finally able to complete construction of the Hindu temple (Singamma Kaali Kovil). During the period 2008 - 2010 while the temple was being constructed my father received several death threats from unknown Sinhala men who called my father on his mobile. One occasion my father was beaten by [R] and [T] who were two influential and well-connected Sinhala thugs in the area I lived. [R] and [T] have committed several crimes in the area and are staunch supporters of the ruling police party (PA - Public Alliance; also known as "Podu Peramuna") and are backed by the PA minister of parliament, Sarath Gunaratne.

Four, subsequently in the same Declaration he indicated that his father was a leader of the temple, and the applicant was appointed president of the Temple’s youth club. The applicant recounted an incident in 2011 when he was threatened by R and T, but he continued to engage in youth club activities. I note that the reason the applicant gave for this was that he said he “did not take the threats made by [R] he (sic) and [T] as serious”.

Five, in the same Statutory Declaration he also stated:

What I fear may happen to me if I return to that country and why

I believe that I am at risk of being harmed and killed possibly by [R], [T] and their supporters.

I also fear the Sinhalese in my area as I am a devout Hindu actively involved in Hindu religious activities.

...

Who I think may harm/mistreat me in that country and why

[R], [T], their supporters and Sinhalese in my area as I’m a devout and active Hindu involved in temple activities.

Six, in another statement he stated:

The committee decided to build a temple in our area on the road called Finance Watte. The Sinhalese people in the area did not like the idea of building a temple there. The committee gathered in our house very often to work out a plan to build the temple. The committee decided to build a temple in a vacant plot of land where Hindu people gathered and prayed by lighting a lamp. The vacant land belonged to the priest. His name Babu.

The delegate (who first considered the applicant’s claims for the visa) recorded:

The applicant during his Entry Interview (EI) on 16 January 2013 made the following statement in response to “Why did you leave your country of nationality (country of residence)”:

When the tsunami happened we had delivered supplies to people of Mullaitivu, an LTTE area. They now suspect I am LTTE. I am being harassed by the CID and Sinhalese in my area. I didn’t have once day of peace and am afraid for my life. So I left.

18    The primary judge acknowledged that the appellant’s submission was that his claim as to fear of harm came from a number of sources and was not limited to the 2011 incident (involving R and T) and the 2012 incident (both extracted above at [4]). The appellant argued that while the Authority dealt with the 2011 and 2012 incidents, it did not address his claimed fear from Sinhalese generally in the area by reason of him being a member of the Temple group.

19    The primary judge noted that the Authority rejected the appellant’s argument, that he had not been denied an opportunity to explain in more detail his fears in relation to his activities in relation to the Temple.

20    His Honour referred to the authorities relied on by the appellant below, which are those also relied on in this Court. As he observed, the parties agreed the Authority would have fallen into legal error if it did not consider a claim expressly raised or one clearly arising from the circumstances presented (at [35]).

21    The primary judge rejected the appellant’s argument as to the basis on which the claim was made below.

22    He concluded that the Temple Group Claim, properly understood, involved two elements; first, that the appellant feared harm specifically from R and T and their supporters (thugs and criminals) because of his Hindu activities, and second, that he feared harm more generally from Sinhalese people in his area because he was Hindu and was active in the Temple (at [59]).

23    Having identified the appellant’s claims before the Authority, the primary judge then considered the reasons of the Authority to determine if each claim had been addressed.

24    His Honour summarised the findings made by the Authority in relation to the 2011 and 2012 incidents before concluding that (at [56]):

Under the heading of “Fear of harm as a Hindu and from thugs/criminal underworld”, the IAA specifically considered the applicant’s claim that he feared harm from R and T because of his involvement in the Hindu Temple in his local area. That is sufficient to deal with that aspect of the complaint in ground one.

25    As the appellant accepts, the reference in that passage to “that aspect” relates that reasoning to the first part of the claim identified above at [22]. I note that at the hearing of the appeal the appellant abandoned a submission made in writing that this conclusion was erroneous as it disposed of both claims. There is no issue on the appeal that the first claim was considered.

26    His Honour then proceeded to address whether the Authority had considered the second, more general part of claim as follows (at [58]-[61], references omitted):

The IAA also considered the applicant’s claim, as made originally in his entry interview, that he had, and would fear for the future, threats from Sinhalese people.

There appeared to be two elements to the applicant’s claim in this regard. One, fear from thugs (including, and beyond, R and T) with whom R and T were associated and were part of some criminal element. Second, a far more general fear of harm from Sinhalese people because he was a Hindu and active in the Temple.

The IAA considered, and rejected, that these fears were well-founded. In relation to the generalised fear, the IAA found that it did not accept that the 2012 incident occurred, as the applicant had claimed, or that “unknown armed men were looking for him”.

In his submissions to the IAA, the applicant complained that he had not had the opportunity to explain how these threats, generally from Sinhalese people, related to his activities with the Temple. The IAA found that, on the material before it, he had been given “a number of opportunities to expand on his claims and evidence” about “his involvement with the temple and about his fears because of these threats from Sinhalese people”.

27    The Court then concluded (at [62]-[63], references omitted):

Further, the IAA specifically considered the claim to fear harm from criminals because of his Hindu activities, and on the basis of his Hindu religion generally, from Sinhalese.

In short, the applicant’s claims were that he feared harm because of his Hindu activism and his activities in the Hindu Temple. This fear of harm was said to emanate from R and T, and a broader group of criminal thugs, and Sinhalese generally. The IAA considered all of the applicant’s claims as they clearly arose on what was before it.

28    The primary judge concluded that, properly read, the reasons of the Authority reflect that it considered both the fear of harm said to emanate from R and T (and a broader group of criminal thugs) as well as threats generally from Sinhalese people (at [52]-[63]). He observed that the applicant had not satisfactorily addressed that the Authority had found that his claims to fear harm were either rejected at the factual level, or were otherwise not well-founded (at [65]). His Honour ultimately concluded (at [68]) that:

In the current case, there is no jurisdictional error in the IAA’s consideration and findings as to whether the applicant held a well-founded fear. The IAA’s findings at the factual level were all reasonably open to it, and for the reasons it gave, and which were probative of what was before it. Simply, there was no need in the current circumstances for the IAA to go on to consider whether any social group, let alone a particular social group, existed. In all, ground one is not made out.

Consideration

29    The appellant’s argument is that he has made a claim to being a member of a particular social group referred to as the Temple group and that a consideration of the Authority’s reasons reflects that claim has not been addressed. The appellant relied on Dranichnikov v Minister for Immigration & Citizenship [2003] HCA 26; (2003) 197 ALR 389, in particular at [26] per Gummow and Callinan JJ, in support of this ground. It follows, so the appellant argues, that the primary judge was in error to reject ground 1 of his appeal. On the other hand, the respondent submits that the appellant’s claims in relation to fear of harm was in fact put on a more limited basis than the appellant contends, that the Authority addressed the claim that was in fact made, and that the reasoning of the primary judge in dismissing the appeal on that ground was correct.

30    I accept the respondent’s contentions.

31    First, as the primary judge recognised, to determine whether the Authority failed to consider the claim, it was first necessary to identify the evidence presented in support of the claim. The appellant accepted that the primary judge has accurately summarised that evidence (referred to above at [16], [17]).

32    The appellant’s argument as to the Temple group relied heavily on his entry interview, which is referred to as the first item in the summary of evidence. That could properly be described as the high point of the evidence for the appellant’s argument. The appellant submitted that the answer in the entry interview necessitated the Authority assessing whether the Temple group was a particular social group. However, that evidence did not stand alone.

33    In particular, as the primary judge observed (at [50], references omitted):

Relevantly, the applicant himself summarised his claims in the Statutory Declaration as follows:

What I fear may happen to me if I return to that country and why

I believe that I am at risk of being harmed and killed possibly by [R], [T] and their supporters.

I also fear the Sinhalese in my area as I am a devout Hindu actively involved in Hindu religious activities.

34    Second, it was also accepted by the appellant that the primary judge had accurately described the claims that were made in the Court below. His Honour identified those claims in the following terms (at [51]):

The subsequent material referred to by the applicant before the Court did not alter the character of the applicant’s claim. That is, in all, he feared harm specifically from R and T and their supporters (thugs and criminals) because of his Hindu activities, and feared harm from Sinhalese generally in his area for the same reason.

35    Immediately before that passage, his Honour recited the appellant’s description of his claim, (referred to above at [33]).

36    The delegate and the Authority were required to consider the claims actually made. The claims were, as counsel for the respondent submitted, more confined than what the appellant contended. The primary judge rejected the appellant’s submission as to what he said the claims to fear harm were, as presented to the delegate and the Authority (at [36]).

37    Any consideration of whether the primary judge has erred in failing to find jurisdictional error on the basis that the Authority failed to consider a claim, must be considered in that context.

38    Third, the appellant challenges the reasoning of the primary judge as to the second, more general, aspect of the appellant’s claim (that he fears harm from Sinhalese in his area in general) on the basis that the Authority’s reasons do not address the appellant’s specific contention that he is a member of the Temple group.

39    In addition, the appellant argued that the primary judge’s conclusion was incorrect in relation to the second basis, that is, that the Authority did not consider that he feared harm from Sinhalese generally. In particular, it is submitted that paragraph [51] of the Authority’s reasons which commences “in regard to the applicant’s claim to fear on the basis of religion” does not address the second claim, because it does not refer to his activities in relation to the temple or Sinhalese in the area.

40    There is some tension between this argument and the appellant’s acceptance that the primary judge has accurately described his claim as it was made to the Authority and the evidence in support of that claim.

41    Moreover, the impugned paragraphs must be viewed in context. When that is done, it is apparent that the Authority was referring to the second part of the claim; that the appellant feared harm from Sinhalese more generally, because of his Hindu activities. They were the claims before the Authority. The appellant accepts that the Authority, at paragraph [11], refers to the appellant’s fears he will be harmed by Sinhalese if he returned to Sri Lanka because he is a devout practising Hindu involved in temple activities. Any reference thereafter by the Authority to it considering the claim of fear based on his religion, must be read in that light. As noted above, the Authority considered his claims in paragraphs [49]-[56], with the second aspect of his claim addressed in paragraphs [51]-[56]. Having considered his claims, the Authority concluded it was not satisfied the appellant faces a real chance of harm on his return to Sri Lanka because of his involvement in the building of the temple in his local area. The Authority also concluded, after it considered the claim on the basis of religion, that it was not satisfied that the appellant will face a real chance of harm on the basis of his Hindu religion. That was a rejection of the appellant’s second claim.

42    There is no error in the primary judge’s conclusion that the reasons given by the Authority reflect that it did address the second, more general aspect of the claim actually made.

43    Fourth, the appellant’s argument does not grapple with the factual findings made by the Authority, which either reject his claims to fear, or support the conclusion that the claims, as made, were not well-founded. During the hearing of this appeal the appellant submitted that paragraph [65] of the judgment below, which refers to those propositions, was incorrect in so far as it related to the Temple Group Claim, because no findings were made in relation to that, and otherwise it was said to be irrelevant. However, on the basis of the claims made before the Authority, the description of the findings is an accurate one.

44    As the Court below correctly concluded, given those factual findings there was no need for the Authority to go on to consider whether any particular social group existed (at [68]).

45    The primary judge referred to SZNOE v Minister for Immigration and Citizenship [2012] FCA 96, where the Court stated at [78]:

Further, as Burnett FM correctly notes, there is clear authority for the proposition that the principles exposed by Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a “social group” for the purposes of Art 1A(2) of the Refugees Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s 91R(1) of the Act for any Convention reason (MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29] per Finkelstein J; SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [49]- [50] per Besanko J; and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21]-[25]). Unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to identify and consider the precise social group to which the applicant claims membership.

46    His Honour also noted the observations in MZZTW v Minister for Immigration and Border Protection [2015] FCA 475 at [14]-[16].

47    The appellant accepted the correctness of those authorities. Nonetheless, he maintained that it was necessary for the Authority to consider whether he was a member of a particular social group, and that it could not make any finding in relation to fear of persecution without doing so.

48    As the primary judge correctly found, the factual findings made by the Authority, including whether the appellant held a well-founded fear, were all reasonably open to it. In those circumstances, there is no reason why the principles referred to in the authorities above, would not apply. Consequently, the primary judge was correct to conclude that there was no need for the Authority to go on to consider whether any social group, or a particular social group, existed. His Honour correctly found there was no jurisdictional error in the Authority’s consideration of the claim.

Conclusion

49    The appellant has not established any error in relation to the decision of the primary judge. His Honour was correct to reject the ground of appeal. Accordingly the appeal is dismissed with costs.

Associate:

Dated:    8 July 2019